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RCMP's shorter version of injunction prompts court's acquittal of Fairy Creek protester

Supporters believe the decision is “likely to have far-reaching ramifications” for those protesters still facing charges of criminal contempt of court.
RCMP officers and members of their extraction team lift a Fairy Creek old-growth logging protester during enforcement of an injunction on Braden Road near Port Renfrew on June 7, 2021. NORMAN GALIMSKI

A B.C. Supreme Court ­justice has found that a script used by RCMP during Fairy Creek arrests was ­insufficient, ­acquitting a man who faced a charge of contempt for ­contravening an injunction.

The decision is “likely to have far-reaching ramifications for the 180 Fairy Creek land defenders still facing charges of criminal contempt of court,” the Rainforest Flying Squad said Thursday.

Ryan Henderson was arrested on Oct. 20, 2021, on the Granite Mainline Forest Service Road while taking part in a protest against logging in the Fairy Creek watershed.

A court injunction, sought by Teal Cedar Products against protesters, was in effect for the area.

The RCMP is authorized by an injunction order to arrest and remove people — with ­knowledge of the order — who are contravening its terms, ­Justice Douglas Thompson said in his decision.

But “the RCMP did not read the injunction order or give a copy of the order to the accused,” he said. Instead, ­officers used their own ­“short-form script.”

It did not contain “sufficient information about the terms of the injunction order and the information that was delivered via this script was not accurate and clear,” Thompson said.

The Crown did not prove that the accused was knowledgeable about the terms of the order or was wilfully blind to it, he said.

Proof of actual knowledge of the order is required before someone can be convicted of contempt of the order, Thompson said.

The rule of law requires that there is a presumption of innocence, that all elements of contempt be proved beyond reasonable doubt and there must be strict compliance with ­procedural safeguards, which cannot be relaxed, he said.

An injunction is a “judge-made” law only applying to particular people in particular place. It isn’t presumed that people will know details of an injunction order.

This differs from a Criminal Code matter because members of the public are expected to know those rules.

The six-sentence script was read by a police officer and video-recorded. Thompson took issue with the wording of the script, saying it might have been an attempt to summarize the terms in the injunction.

It used terms such as ­“blockading,” which is not in the injunction order, and it failed to include other important terms, including where and when it applied, he said.

Thompson agreed with the accused’s point that the Crown was not able to prove there was “actual knowledge” of the injunction order. The police script failed to provide actual knowledge of the terms of the order.

“To allow for material ­inaccuracies and omissions would be an impermissible retreat from the strict approach called for in contempt cases,” he said.

Noah Ross, who represented Henderson with Ben Isitt, said upcoming court dates in ­Nanaimo for 180 others facing criminal contempt of court are being adjourned by the Crown.

The cases had been scheduled to run until June 5, but Ross had anticipated it would take longer to complete them all.

About 1,200 arrests were made and 400 people were charged with criminal contempt of court related to the ­injunction against protesters, which remains in place.

So far, about 210 people have been convicted of contempt. Sentences ranged from 15 hours community service to 14 days imprisonment, the Rainforest Flying Squad said.

A B.C. Prosecution Service official said no decision has been made about an appeal.

Any decisions on next steps will only be made after a ­complete review of the case and its reasons for judgment, he said.

Teal Jones declined to ­comment.

An RCMP spokesman referred questions to the ­prosecution service.

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